Tag Archives: immigration enforcement

Uphold the rule of law, and let your illegal immigrants stay

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A common restrictionist trope is that allowing people who have settled unlawfully to regularise their legal status would be an intolerable departure from legal tradition and the rule of law. But in his recent book Immigrants and the Right to Stay, philosopher Joseph Carens demonstrates that the opposite is true: our legal and moral traditions demand a rules-based system for regularising the unauthorised. Justice and the rule of law are perverted when they deny people due process and instead offer them justice so delayed that to call it anything but denied would make the term “delay” a mockery.

Carens’s basic contention: anyone who has lived in a community for a certain period of time can be reasonably considered a member of that community and should be afforded similar rights as other members of that community. This sounds rather abstract, so let me put this to you: someone is a pillar of your community. Attends your religious services, well, religiously. Always ready to lend a helping hand when a neighbour could use it. Always the first to chip in a donation for someone in need. Never in trouble with the law. One day, the authorities raid his home and evict him, on the grounds that a long, long time ago, he didn’t fill out the right form allowing him to join this community. Not that he murdered someone; not that he trafficked drugs; he filled out the wrong forms, and that makes him “illegal”.

Carens’s contention, which makes eminent sense, is that your status as part of a community of people does not flow from a piece of paper. It flows from your contributions to and standing with your peers. We do not gain our humanity, our family, our friends, our neighbours from the law. We learn about and make our families, friends, and neighbours long before the law ever got or gets involved. In his book, Carens notes that the British immigration authorities once tried to deport an 80-year-old woman who had lived in the United Kingdom her entire adult life, and only public outrage stopped them. If living somewhere for 60 years makes you a member of the community, Carens notes, then might not a shorter time period still grant you similar standing? He ultimately proposes a waiting period of 5 to 7 years. Irrespective of what the right period should be, the principle is clear: living somewhere in peace with your fellow man eventually makes you a part of that community. The law cannot tear that community apart without tearing up basic morality.

Carens notes that tradition is on his side: that even countries like the US, where today any amnesty is seen as taboo by many, have a long history of allowing people who have lived there for a certain period of time to regularise. Even today, many countries have ongoing rules-based regularisation regimes: simply identify yourself to the authorities, present proof you’ve lived peacefully in the community long enough, and the sword of Damocles over your head is lifted.

Basic legal principles are on Carens’s side too: typically, the statute of limitations on most crimes isn’t more than a few decades, and for many crimes it’s under a decade. (The statute of limitations refers to the period of time after a crime after which the state can no longer prosecute you for it.) In most jurisdictions, only the worst crimes, such as murder, don’t have a statute of limitations. As I’ve written before, the US legal system treats crossing an imaginary line (which harms nobody) as a crime worse than exploiting children for sex. US law essentially sends the message that crossing a border illegally is worse than filming child pornography or committing murder!

And regardless of what harm may inherently occur from crossing an invisible and arbitrary line, I certainly don’t think you can reasonably compare it to filming child pornography or murder. The primary “harm” of non-violent border crossing is economic competition between foreigners and natives. But how is Josef “stealing” a job from Joe supposed to be harming Joe, while John taking a job Joe could have taken isn’t any harm at all? Why do we criminalise Josef from earning an honest living because it might “harm” someone, while we allow Johns to steal jobs from Joes every day? Competing on a level playing field is not an infringement of anyone’s legal rights, unless you believe some people are less human than others.

And yet dehumanisation of the foreign-born is yet another message which the legal system sends: we give inanimate objects more rights than people. The robot that “steals” your society’s jobs has an easier time getting into the country than a foreign-born person who might be able to do that robot’s job for even cheaper. And what does that robot contribute to your society? Maybe it creates jobs for robotics maintenance crews, but that’s about it. The human being is a living, organic part of our community — he or she creates jobs for and immeasurably enriches the lives of landlords, restauranteurs, hairdressers, community organisers. Despite this, most countries’ laws look more kindly on importing inanimate objects that “destroy” jobs than they do on allowing free people to come in and “create” service jobs. And we have somehow deluded ourselves into thinking that this legal system makes moral sense: I once asked a free trade advocate why he opposes liberalisation of immigration laws. He proudly told me that it was because he believes, I quote, “people are not commodities.”

Sure, you can pretend your legal system humanely does allow immigrants to come. But most people consider waiting a year for any government document a rather intolerable delay. For many immigrants — on occasion, even the spouses and children of citizens — a year’s wait is far better than anything they got. Some immigrants to the US are getting their visas today after waiting in the “queue” for over two decades. Many of the “queues” for US visas are backlogged by decades — 80 years in some cases. And the US has one of the better immigration systems out there! Is it even right to speak of a queue for immigration to the UK, when the government’s avowed goal is to cut net immigration essentially to 0 — and it has every intention of accomplishing this by hook or by crook, regardless of how many families and communities and jobs it must destroy? If the phrase “justice delayed is justice denied” was not coined to describe the world’s immigration laws, it seems remarkably apt.

The world’s numerous legal systems have tried to ban many things in the past. They have experimented with banning various sexual acts among consenting adults, banning alcohol production/distribution, banning interracial families. They have tried and they have failed. What we find is that pretending to enforce the unenforceable only engenders disrespect for the law. It makes a mockery of the rule of law when we concoct laws that cannot be enforced. Now, these are not laws that many people were willing to risk their lives to violate — yet these laws could not stand. Meanwhile, every single day, innocent people around the world risk death in deserts or on the high seas to get into countries that offer them no legal way to enter. What hope have we of ever enforcing a law that bans innocent, hardworking people from supporting themselves and taking care of their families?

Moralists and conservatives often worry about what message the law is sending. I have to agree: what message does the law send when it deports a mother for caring for her children? When it denies the husband a visa to live with his wife? When it tells the hardworking wage-earner, “Sorry — the queue is 50 years long, don’t even dare send an employer your CV”? We are making a mockery of fundamental morality when we criminalise the family and we criminalise honest wages. As Carens says, the law is violating social reality.

Yes, the message is supposed to be: when crossing made-up lines on the map, identify yourself to the proper authorities. Somehow this is a crime worse than exploiting children for sex, and at least as bad as murder. If that is the message the law wants to send, ok. But if our message really is that innocent people identify themselves properly, why not allow them to do so? If this really is your concern, what do you have against allowing people to identify themselves after they have entered — or simply allowing people to enter and identify themselves at regular ports of entry, instead of making them wait in a queue that’s so long, it shouldn’t be called a queue at all?

There are a lot of things we could do to move to a more just legal system, one offering all people the due process they deserve. But Carens’s moral and philosophical case for ongoing regularisations intrigues me, precisely because it so neatly reconciles many of the moral absurdities of arbitrary immigration restrictions with the rule of law. Offering people a transparent legal process to acknowledge their standing as contributors to our society and community resonates with the principles of justice. The punishment fits the crime, if you can call crossing a made-up line a crime at all.

We wouldn’t send people to jail 40 years after the fact for a speeding ticket. So why would we wreck families and communities years or decades after the fact? When we are presented with such absurdities, as shown in the case of the grandmother facing deportation from Britain, we recoil because we recognise that the law is destroying the community and imposing a punishment all out of proportion to the offense. A legal mechanism for regularising “illegals” should be essential for any civilised society. If we can’t have truly open borders, we should at least have an immigration regime that doesn’t make a mockery of the rule of law. Only barbarians believe the law should send the message that the just reward for doing our job or taking care of our family is deportation and exile from the place we call home.

Championing Both Open Borders and An End to the U.S. Drug War

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Even advocates of open borders acknowledge that its realization is very unlikely for many years to come.  Similarly, campaigns for the legalization (or at least the decriminalization) of drugs face an uphill battle, although there have been successes in recent years in the U.S. and Europe.  Despite the challenge of realizing both of these radical causes, the legalization of drugs would complement some of the advantages of having open borders.

The failed war on drugs

Image source Failed drug war: U.S. and Mexico losing battle against cartels

Coincidentally some progress on both fronts has occurred this summer in the U.S.  The Senate passed a bill that would raise legal immigration levels by 50 to 70 percent within five years and legalize the millions of undocumented individuals already in the country, although the enforcement provisions of the bill are unwelcome.  On the drug policy front, the U.S. attorney general signaled that federal prosecutors would no longer pursue mandatory minimum sentence laws for some drug offenses.

Let’s begin with some background information on the war on drugs in the U.S. In The New Jim Crow: Mass Incarceration in the Age of Colorblindedness  Michelle Alexander argues that the war on drugs has placed many African-Americans and Latinos into a new “racial undercaste.” (p. 185) The latest version of the war on drugs was instituted because some politicians were trying to “…appeal to poor and working-class whites who, once again, proved they were willing to forego economic and structural reform in exchange for an apparent effort to put blacks back ‘in their place.’” (p. 186)  The war on drugs began being pursued in earnest during the Reagan administration (p. 49), and as a result over the next three decades there was a huge increase in the U.S. prison population. (p. 59 and p. 99) Ms. Alexander adds that “In the drug war, the enemy is racially defined… Although the majority of illegal drug users and dealers nationwide are white, three fourths of all people imprisoned for drug offenses have been black or Latino.” (pp. 96-97)  And even after those who have been incarcerated for drug violations are released, they “will be discriminated against, legally, for the rest of their lives–denied employment, housing, education, and public benefits… They become members of an undercaste–an enormous population of predominately black and brown people who, because of the drug war, are denied basic rights and priviledges of American citizenship and are permanently relegated to an inferior status.” (pp. 181-182)

Similarities Between Immigration Restrictions and the War on Drugs

Before exploring the advantages of ending both immigration restrictions and the the war on drugs, consider several similarities between American immigration restrictions and Ms. Alexander’s description of the war on drugs.  One is that both were created largely due to racial biases.  As we have seen, some politicians supporting the drug war were appealing to white insecurities about African Americans.  Similarly, the imposition of vigorous federal immigration restrictions was motivated by concerns about the race of certain immigrants.  In the late 19th century, Chinese were excluded by federal law from immigrating based on what Chris Hendrix calls “knee-jerk racism.”  Later, the 1924 Johnson-Reed immigration legislation, “the nation’s first comprehensive restriction law,” was largely propelled by racism.  (quotation from Impossible Subjects: Illegal Aliens and the Making of Modern America by Mae Ngai, p. 3)  Politicians were concerned over immigration from southern and eastern Europe and the maintenance of America’s northern European “stock.”  John Higham, in Strangers in the Land: Patterns of American Nativism 1860-1925, notes that as the House of Representatives worked toward the 1924 legislation, its champions “now largely ignored the economic arguments they had advanced in behalf of the first quota law three years before.  Instead, they talked about preserving a ‘distinct American type,’ about keeping American for Americans, or about saving the Nordic race from being swamped.  The Ku Klux Klan, which was organizing a vigorous letter-writing campaign in support of the Johnson bill, probably aided and abetted this swell of racial nativism…” (p. 321)

Both systems also involve racial profiling.  In Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws, Kevin Johnson writes that “racial profiling in immigration enforcement… harms the dignity of persons stopped by immigration officers and stigmatizes U.S. citizens, especially Mexican-Americans, who are subject to immigration stops because they fit the ‘undocumented immigrant profile.’” (p. 108) Similarly, Ms. Alexander notes that “studies of racial profiling have shown that police do, in fact, exercise their discretion regarding whom to stop and search in the drug war in a highly discriminatory manner.” (p. 130)

Under both systems authorities have significant power to intrude on people’s lives.  Within 25 miles of international borders, Border Patrol agents have access to private land.  Even in a zone extending 100 miles from borders, their “authority extends beyond that of other law enforcment agencies,” and agents in that zone regularly ask bus and train passengers for identification and question them.  Similarly, Ms. Alexander notes that rulings by the Supreme Court during the War on Drugs have made “… it relatively easy for the police to seize people virtually anywhere–on public streets and sidewalks, on buses, airplanes and trains, or any other public place–and usher them behind bars.  These new legal rules have ensured that anyone, virtually anywhere, for any reason, can becom a target of drug-law enforcement activity.” (p. 62)

In addition, both legal systems produce an “undercaste.”  Like drug felons, undocumented workers in the U.S. live under a different set of rules than most residents.  They are legally barred from employment, cannot access many public services, and live in fear of detention and deportation.  Mr. Johson writes that “… a new, but often invisible, racial caste system slowly emerged in the United States.  Immigration law in the United States allows for labor exploitation along racial lines.  It is a new Jim Crow system.” (p. 129) (emphasis mine)

Finally, the behavior that both systems target is non-violent, often born out of limited economic opportunities, and often harmless.  Ms. Alexander notes that in 2005 most drug arrests were for possession and that most of those imprisoned for drug offenses do not have violent histories.  Many arrests are for marijuana possession, which is “less harmful than tobacco or alcohol.” (p. 59) Because of a decline in employment opportunities in inner cities due to globalization and industrialization, she notes that there are “increased incentives” to sell drugs. (p. 50 and p. 123) With regard to immigration, there is lots of information at this site and elsewhere showing that immigration benefits receiving countries and any negative consequences can be mitigated by keyhole solutions.  Immigration itself is peaceful and largely arises from a desire to improve one’s economic situation.

The Advantages of Ending Both Immigration Restrictions and the War on Drugs

There are several advantages to ending both immigration restrictrictions and the war on drugs.  First, much of the pressure on the border would be eliminated with these changes.  Along the U.S.-Mexican border, the Border Patrol focuses on illegal immigration and drug smuggling.  With the changes, these would no longer be issues for the Border Patrol, since immigrants would have no reason to sneak into the U.S. and, particularly if Mexico were to end their drug enforcement efforts and the U.S. didn’t regulate the flow of drugs over the border, the same would be true with the movement of drugs.  Border Patrol agents, who are officially Customs and Border Patrol agents, could focus more on customs matters at ports of entry, look out for potential terrorists, and address weapons smuggling.  In addition, landowners along the border who have endured drug smuggling, people smuggling, and/or individual immigrants coming through their property would no longer experience these intrusions.  Currently, in some rural border counties, “the threat of cartel-related crime, whether the smuggling of drugs or illegal immigrants, has caused people to arm themselves to an extraordinary degree and take other precautions.”  The undesirable impacts of border fencing could also be avoided.

A related benefit would be a weakening of criminal gangs that operate along the U.S.-Mexican border.  In Immigrants: Your Country Needs Them, Philippe Legrain observes that immigration restrictions force some immigrants to rely on criminal gangs to smuggle them. (p. 38) Similarly, “organized crime, gangs and drug cartels have the most to gain financially from prohibition” of drugs.  Sometimes a criminal enterprise does both, smuggling immigrants and drugs.   For immigrants, according to an article in the New York Times, sometimes “… the only way to get across (the border) is to deal with gangs that sometimes push migrants to carry drugs.”  With open borders, immigrants wouldn’t have to rely on these groups to cross the border, and legalizing the drug trade would allow non-violent economic competition which would be detrimental to the groups.

Second, open borders and terminating the war on drugs would benefit African-Americans and Latinos in the U.S.  As we have seen, both groups have disproportionately suffered from drug enforcement during the drug war, from being subjects of racial profiling to going to prison to dealing with the harsh economic consequences of having a criminal record once released.  Latinos must deal with immigration enforcement as well; Latinos, whether citizens, legal residents, or undocumented, are subjected to profiling of them as undocumented individuals and, if they are undocumented, face exploitation by employers, detention, and deportation.  There are also many Latino mixed status families, all of whose members suffer if the member(s) who is undocumented is apprehended by immigration authorities.  Ending these types of enforcement would liberate African-Americans and Latinos from the terrible burdens associated with them.  (To help those convicted of drug crimes succeed, their records would have to be expunged, and they should be allowed to not have to reveal these convictions on applications for jobs and public benefits.)

Furthermore, increased immigration under an open borders policy could help African-American communities get back on their feet after enduring decades of the drug war, deindustrialization, and other negative factors.  A summary of a study released in June by the Immigration Policy Center and conducted by Jack Strauss of St. Louis University demonstrates how immigration helps these communities:   “A comprehensive analysis of Census data from hundreds of U.S. metropolitan areas indicate that immigration from Latin America improves wages and job opportunities for African Americans. This analysis serves to dispel the common myth that African Americans are negatively impacted by the immigration of less-skilled workers from Mexico and elsewhere in Latin America… The positive economic impact of Latino immigration is related to population. Many metros, particularly in the Midwest, including Cleveland, Dayton, Detroit, and St. Louis, are not experiencing vibrant population growth. Instead, aging baby boomers and negative net migration are leading to a hallowing out of cities, declining school revenue, falling housing prices, big businesses moving their headquarters, and a dearth of small businesses. St. Louis, for instance, has experienced a sharply declining population, and at the same time, very little Latino immigration. As a result, Saint Louis has closed more than a dozen schools in recent years, which has cost the jobs of hundreds of African American teachers, administrators, and staff. Our research shows that an increase in immigration from Latin America would have sustained St. Louis’s population, tax base, school enrollment, and most of the lost African American jobs. Further, it would have reduced crime among young African American men by giving them more economic opportunities.

“Why are population size and composition so important for economic development? Edward Glaeser and Joshua Gottlieb argue that larger cities are successful because they have thriving clusters of people and companies working together. More people from Latin America increases the vibrancy of a city, its culture, and the opportunities it offers. Further, research shows that specialization by encouraging different skill patterns leads to higher wages and more jobs.”

Third, ending both immigration restrictions and the war on drugs would allow the U.S. to avoid the expense of incarcerating huge numbers of individuals and would free up law enforcement and the courts.  According to the Drug Policy Alliance, in the U.S. more than $50 billion is spent annually on the war on drugs and more than 1.5 million people were arrested in 2011 on nonviolent drug charges.  The tab for immigration enforcement is close to $18 billion, and hundreds of thousands of immigrants are apprehended and/or deported each year.  Over three hundred thousand people were in prison for drug offenses at the end of 2011, and a similar number are put in detention each year by immigration authorities.  Many immigration violations have become criminalized, and Kevin Johnson notes that “as it did during Prohibition, the criminalization has created a caseload crisis in the federal courts.” (p. 179)  Many drug and immigration cases have reached the Supreme Court, and Mr. Johnson states that federal courts of appeals have been flooded with immigration cases. (p. 179)

So what about all of the money that would freed up from ending the expensive enforcement associated with the drug war and immigration controls?  (Even more money would be availabe with the legalization of at least some drugs, which would allow the government to tax the trade.)  Some of the money would have to continue to go toward border monitoring: customs enforcement, controlling weapons flows, and keeping watch for terrorists.  Ms. Alexander notes that many Americans are financially vested in the war on drugs, including rural communities where prisons are build to house offenders, prison guards, private corrections companies, and others, so some of the money could be spent on helping some of these individuals adapt to an America with far fewer prisoners.  Some of the money could go toward additional drug treatment and prevention programs, even if drug use rates do not significantly change.  The remaining money could be used to help inner cities that have been devastated by the drug war and to help Americans who might be adversely affected by rising immigration under open borders.  In effect, ending the drug war could be a keyhole solution that would help ease the transition to open borders.

Finally, from a libertarian perspective, these radical changes would end government intrusions into the lives of millions of people, including those who have no involvement with drugs or immigration.  For those wishing to immigrate legally or possess drugs, it would be a dramatic expansion of individual liberty.

Based on how the outcomes of ending these two oppresive systems of enforcement could complement each other, should open borders advocates also vocally begin calling for an end to the drug war?  It might alienate some, although I suspect that many who would be receptive to open borders would also be supportive of ending drug enforcement.  The case for open borders also might receive more support from the African-American community if it were paired with ending the drug war.  American open borders advocates should consider attaching the campaign to end the drug war to their efforts to change immigration policy.

Open Borders editorial note: As described on our general blog and comments policies page: “The moral and intellectual responsibility for each blog post also lies with the individual author. Other bloggers are not responsible for the views expressed by any author in any individual blog post, and the views of bloggers expressed in individual blog posts should not be construed as views of the site per se.”

Immigration restrictions are a threat to liberty everywhere

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In the civil libertarian world today, two issues rule the roost: surveillance and drones. Ordinarily civil rights issues like these find it difficult to gain traction, but increasingly it looks like even the mainstream media can’t ignore these issues. Spying on the behaviour of millions of innocent people, and murdering innocent people (AKA “collateral damage”) from a remote-controlled airplane, are difficult things to readily reconcile with modern ideas of human rights and freedoms. These issues make me think: how long before civil libertarians begin to comprehend the danger of similar totalitarian disregard for liberty in immigration policy?

Drones are primarily a concern for people burdened by the welfare of innocent people in war zones. Innocents in Yemen, Afghanistan, and Pakistan live daily in fear of an errant missile strike, meant for another, but still deadly to all innocents in its path. The policy for deploying drones, and launching their weaponry, until recently has been near-entirely opaque (some would argue it is still entirely opaque). What due process do we have to ensure that drones won’t recklessly murder dozens, hundreds, of guiltless people, in search of taking out one terrorist? What assurances can we give innocents that an overzealous government bureaucrat can’t use his discretion to murder innocent human beings?

The rationale for the US government’s National Security Agency surveillance programmes has always been: we spy on foreigners’ data, not our own. The NSA still maintains it protects US citizens’ data rigorously, though there are many reasonable doubts that this is true. Edward Snowden’s revelations, even if reconciled with the NSA’s claims about protecting US nationals’ data, still ring alarm bells for American civil libertarians: how easy might it be for the NSA to turn the same lens it has trained on foreigners onto us instead? In 1975, US Senator Frank Church warned of such surveillance:

That capability at any time could be turned around on the American people and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know.

Since I blog for Open Borders, you would be wise to surmise that neither drones nor NSA surveillance are issues I think about much. But like millions of others, these are issues that weigh on me nonetheless. It worries me that innocent people are subject to murder by the state without due process. It worries me that innocent people are subject to surveillance by the state, again, without due process. And I know these worries all too well, for as an immigrant and someone who enjoys reading stories of immigration, I have seen just how utterly the modern state throws due process in the garbage the moment an immigrant crosses the threshold.

I’ve written before about how perplexed I am that civil libertarians devote a disproportionate amount of energy to criticising allegedly dehumanising air travel procedures. I’m glad to see that deserving due process issues are taking up more attention than ever before. But civil libertarians need to add another issue to complete their trifecta of due process concerns: drone murder, arbitrary surveillance, and arbitrary restriction of human movement. The simplicity and fairness of open borders is not just a nice-to-have; it is critical for a just and fair legal process.

I and others have written time and time again about how modern immigration procedures recklessly abandon due process. Ask yourself: did the refugees whose files were wheeled past a UK Minister so civil servants could “truthfully” tell Parliament that a Minister had duly reviewed their applications get justice? Did they get due process? How about the Brazilians whose visa applications were rejected because a US consulate decided that black visa applicants must be poor? Did they get due process?

Any US consular officer is entitled to reject most visa applications for any reason they like. This “consular nonreviewability” discretion, by US law, cannot be challenged in court or overruled by senior officials — not even the President. Since 1990, the American Bar Association has persistently asked the US government every year to  “establish increased due process in consular visa adjudications and a system for administrative review of certain visa denials, including specified principles” — a request that has consistently fallen on deaf ears. In 2005, the US State Department issued a report recommending further reductions in existing due process and more discretion for consular officials.

It would be one thing if this due process brouhaha focused on police officers arbitrarily writing speeding tickets (as they often seem to be doing in many jurisdictions). But this lack of due process tears families apart. It destroys jobs. Imagine if you lost your job because your employer claimed you were a drug smuggler (based on your name resembling someone else’s, who actually is a drug smuggler) — and you had no right to challenge that claim in court. That actually happened to one unlucky immigrant in the US. A lack of legal due process harms real human beings; it breaks hearts and homes.

It is no consolation that the government is only empowered to take your spouse and children away from you, or fire you from your job, if you’re a foreigner. As Senator Church warned in 1975:

I don’t want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return. (emphasis added)

A government powerful enough to arbitrarily evict your neighbour from his home, take him away from his family, and take his livelihood away from him, is powerful enough to do that to you too. One remarkable thing I’ve found about the debate surrounding drones and surveillance is that the people criticising them often also implicitly criticise a focus solely on the well-being of citizens, urging us to account for these policies in the totality of their effects on innocent human beings, regardless of nationality. I do not think this criticism of citizenism has struck that much of a chord with the masses — Glenn Greenwald may worry about the innocent Afghan victims of drones, or innocent British victims of surveillance, but the median news media consumer probably does not.

However, these issues resonate, because people appreciate the risk of giving government too much power — the power to kill and the power to spy without the process of law or supervision. Perhaps people need a similar awakening about the power of government to keep you alive while taking away everything you hold dear — your home, your job, your family. That the victims are mere foreigners should be little consolation. A government powerful enough to do anything without due process is powerful enough to make a victim of you too.

The photograph featured at the top of this post is of striking miners being deported from Bisbee, Arizona in 1917. Scanned by the Arizona Historical Society; original photographer unknown.

The American bureaucracy that is worse than the TSA, IRS, and DMV combined

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Recently I stumbled on a Bryan Caplan blog post I remember reading a couple years ago, about a businessman who was refused entry to the US purely on the basis of a technicality with his visa. The businessman, Tim Worstall, had a valid business visitor’s visa which he’d used several times before without issue. On this occasion, he was refused entry because US immigration officers just felt he ought to have a different visa in order to enter the US. They held him for interrogation without a lawyer, without recording what was said. An officer wrote an account of what happened from memory, and forced Worstall to sign this account, despite Worstall’s protests that it was inaccurate, because he “was told that if [he] did not [he] would be deported, [his] passport declared invalid for travel to the US for the rest of [his] life.” Worstall concludes:

There is no law, evidence, representation nor even accurate recording of proceedings in such “voluntary departures”. It is entirely at the whim of the agents at the border post. I was actually told by one agent “I’m gonna screw you over”. Something of a difference from what’s scrawled over that statue in New York really.

The comments are interesting; quite a few people seem horrified by the lack of due process in these proceedings. But they are really just par for the course. As I’ve written before, US consular officers essentially have dictatorial discretion in denying visa applications. Border agents have similar authority. In the comments on Caplan’s post, a Pierre Honeyman wrote about how one unprofessional US border officer arbitrarily reduced the validity of his 1-year work visa to 2 weeks, and arbitrarily invalidated the work visas of several of his colleagues.

There was another commenter, one Brian, who argued that some fault must lie with the victims of arbitrary immigration policies:

Don’t perjure yourself by signing a false statement. Don’t do or say suspicious or clever things to hostile and armed agents of a cruel and nasty government. Demand access to a supervisor, a lawyer and a judge, even if they tell you you’re not entitled to them. Have some friends expecting you who know to demand answers from local officials. Never say or do anything whatsoever in the USA without advice from a good lawyer.

I’m not sure how often Brian crosses international borders, but this is really something easier said than done. I’ve been crossing borders since young, and few things strike more fear in my heart than dealing with immigration agents, even though I know I’ve done nothing morally wrong (I’ve never crossed a border unlawfully, never been deported, never had any trouble with the law, in fact). A simple typo in your immigration papers can ruin your life. This is as true outside the US as it is in the US, though this problem is especially pernicious there.

Demanding access to a lawyer in US immigration proceedings is easier said than done, especially when you’re trying to enter lawfully. US deportation proceedings are no beacon of due process or justice, but even those subject to deportation have more legal rights than foreigners trying to enter lawfully do. Worstall could have refused to sign false statements and demanded a lawyer all he liked — the fact is, given US immigration agents’ dictatorial discretion, all of this would have been in vain. Standard principles of due process and fair trials which most of us in civilised societies take for granted simply don’t apply.

(None of this is to say we ought to blame the individual professional civil servants in immigration bureaucracies. The worst personal encounters I’ve had with immigration bureaucrats have been limited to facing mildly unpleasant demeanours; the best have been quite helpful and pleasant. But the professional conduct of individuals can never excuse the corruptness of the system that employs them.)

I don’t think it’s an accident that immigration laws are so inhumane, arbitrary, and unjust. US legal scholars note that this dictatorial discretion offered to individual US government employees stems directly from the US judicial precedent of Chae Chan Ping v. United States — better known as the Chinese Exclusion Case. As one of them says:

Reliance on the Chinese Exclusion Case is a bit like reliance on Dred Scott v. Sandford or Plessy v. Ferguson [two since overturned cases which similarly sanctioned government bigotry and prejudice]. Although the Supreme Court has never expressly overruled the Chinese Exclusion Case, it represents a discredited page in the country’s constitutional history.

When we base our laws on the moral principle that foreigners have no rights worth respecting, it should not be surprising that due process and a fair trial are consigned to the dust heap. When we base our laws on the moral principle that we can do whatever we like to foreigners who come in peace, it should not surprise us that foreigners try to come in peace without getting our attention and immigrate illegally.

Americans love to complain about government bureaucracies like the TSA, the IRS, or the DMV. At least those bureaucracies actually have rules they need to follow and can’t arbitrarily decide you really should pay more taxes than what the law says, or you really should have a driving licence for only 1 year instead of the usual 5 years, or you really need an anal probe before you board that train. Immigrants live in fear of a bureaucracy that’s worse, more powerful, and more arbitrary than the TSA, the IRS, and the DMV combined — and because they’re foreigners, we’ve apparently decided that that is perfectly fine.

Is corruption on the part of consular officials good or bad?

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John Lee’s post on US visa policy is, for me, a reminder of how important it is for people to have rights. Rights can sound like an abstruse or arbitrary notion. “Natural rights” sounds like a ghost from the 18th century suddenly walking the earth again. “Human rights” sounds like newfangled UN-speak. But when a person is denied a visa for refusing to laugh at a consular officer’s joke, one feels a certain indignation, a certain repugnance, as if an injury has been done to something rather ineffable but very important. It is not proportional, not fitting, unjust. It is somehow intolerable. The ineffable something that has been injured is human dignity, or in other words, human rights. Rights are the only antidote to arbitrariness and discretion.

Anyway, one of the odd side-effects of an improperly discretionary regime that doesn’t give due respect to human rights, is that corruption can suddenly seem like rather a good thing. Which of the following is more offensive?

1. A visa applicant is rejected for not laughing at a consular official’s joke.

2. A visa applicant is rejected for refusing to pay a $5,000 bribe.

My intuition actually sort of tilts towards (1) being more offensive. I’m very tentative on this point. But at least in case (2), the applicant knows the process. He has more of a sense of being the author of his own life story, of having a say, of knowing the criteria, of being able to plan.

Of course, if I put on my “economist” hat, a very simple analysis suggests itself. If a visa applicant spends his time kissing up to a consular official by researching him and learning what, e.g., laughing at his jokes, puts him in a good mood, resources have been wasted. Perhaps the consular official likes being flattered, but probably he doesn’t value it much, and surely less than the effort to do it is worth. By contrast, if the applicant pays the consular official a $5,000 bribe, both parties clearly benefit. The consular official is $5,000 richer, and the visa applicant apparently values the visa more than his $5,000, or he wouldn’t have paid. Of course, the US public, of which the consular official is supposed to act as a representative, might be deemed to suffer by the decision. But whatever the US public’s stake in immigration may be, it can hardly be claimed that the willingness of visa applicants to laugh at consular officials’ jokes has anything to do with the interests of the US public. So if the consular official is given such discretion that he is entitled to accept or reject visa applicants based on whether they laugh at his jokes or not, then he can’t be injuring the US public by exercising the discretion that has been allotted to him in a fashion that enriches him personally. Efficiency is therefore served by consular corruption.

Now, what this leaves out is truth. I presume that consular officials who reject applicants based on an applicant’s not laughing at their jokes are not deemed to have done anything dishonest or illegal, but that consular officials are explicitly forbidden to take bribes. How does that consideration weigh against the greater efficiency of consular corruption?

One goal of my DRITI proposal is to remove such dilemmas by removing consular discretion. Only when the state seeks to discern and protect individual rights can true rule of law exist.